6th RED CROSS INTERNATIONAL HUMANITARIAN LAW MOOT
International Criminal Court
MEMORIAL FOR THE PROSECUTOR
Law School, Wuhan University
Chen Jianjun & Han Hui
(Word Count: 2000)
MEMORIAL FOR THE PROSECUTOR
and lost ability to take part in the hostilities. humiliating comments and embarrassing situations. . . 1997-VI. These people “in hand of an adverse party” were hors de combat. 3 Prosecutor v. IT-95-14-T.I. IN PARTICULAR CRUEL TREATMENT AND TORTURE. “Beatings during questioning” and “the detention of a person in inhumane conditions” are listed as examples of severe sufferings. 4 AP I.6 for KAF is the
Aydin v. According to UN Human Rights Committee.
.1 KAF and KESA inflicted severe physical and mental sufferings to the detainees. Moot Problem (‘Facts’).2 The people detained in Argus and Corti were hors de combat. 2 Asia-Pacific Moot Court National Rounds 2012. 6 Prosecutor v.4 1. 1. ECiHR. p. 5 Prosecutor v. The victims of severe physical and mental sufferings were in hand of KAF and KESA by detention. .5 Besides. 1. Treatment in detention facilities operated by KESA. Report of Judgements and decisions.1. .461. the intensity of the conflict reached the “protracted” requirement in Tadic. Greek case. three women detained were subject to inappropriate touch. Tadic (Decision) (1995 Appeals Chamber). Moreover. were comparable with those above. Turkey. IT-94-1-T. Blaskic (Judgement) (2000 Trial Chamber). both parties possessed “the requisite organization”.1. 1. Yearbook of the convention on Human Rights. ECtHR. 1 Later in Tadic case and Blaskic case. IT-94-1-AR72. Article 41.1 The Katoland Armed Forces (KAF) and Katoland External Security Agency (KESA) have committed cruel treatment in Argus and Corti. The non-international armed conflict (NIAC) between DAF and KAF commenced in 1st September 2010. Tadic (Judgement) (1997 Trial Chamber). This constitutes severe mental sufferings. With shootouts increasing to large-scale clashes and resulting in heavy casualties. without “consideration due to their sex”.1.3 The conduct took place in the context of and was associated with NIAC. “severe beatings” 2 and being “confined in cramped or overcrowded facilities and deprived of sufficient food and water”3 were respectively characterized as cruel treament. COLONEL CALLEY JONES BEARS CRIMINAL RESPONSIBILITY FOR THE WAR CRIME OF VIOLENCE TO LIFE AND PERSON. .
Element 2. The purpose to obtain information or a confession could easily be deduced. They were also aware of the existence of an armed conflict. . .1 A superior-subordinate relationship existed. Jones was a military commander in charge of KAF and KESA. In Kunarac case. 9 Ibid. where people detained were believed either to have association with or to be supporters of DNA militias. 10 ICCSt. a victim was subject to severe beatings during his interrogation and torture was prevalent in those places operated by KESA where victims were interrogated.11 Appointed the Executive Vice-Chairman of NCC.7 or “in furtherance of the armed conflict”. Delalić (Judgment) (1998 Trial Chamber) IT-96-21-T.9 1. and issue political statements.10 In this case. in particular cruel treatment and torture. the establishment of torture requires the purpose of the perpetrator to inflict such pain or suffering.8 1.4 The 3rd and 5th elements of this crime are also fulfilled. KAF and KESA knew that detainees were under the protection of the Conventions. 2. Later their assistance in the search of West Drakonia and the take-over of Corti further confirmed
Prosecutor v. .
. since attacks in Corti and nearby villages have been immediately intensified and lasted for more than 10 days. Superior-subordinate relationship exists when a person is in “formal status” or in “effective authority and control” as a military commander. Thus the conduct took place in the context of NIAC. Article 8(2)(c)(i)-4. Kunarac (Judgement) (2002 Appeals Chamber) IT-96-23&IT-96-23/1-A (‘Kunarac’). Compared with cruel treatment. this association with NIAC exists when acts are “closely related to”. 11 Prosecutor v.1. 2. Jones strengthened his “effective authority and control” over KAF and KESA through the liaisons officers.2 KAF and KESA have committed torture in Argus and Corti. Jones bears superior responsibility for the war crime of violence to life and person.governmental forces while DNA is able to arm itself. The arrest of the detainees was in the purpose to facilitate the reinforcement of the conflict. Facts.
. Article 7(3). and the NCC spokesperson tacitly consented to the cruel treatment. KAF members immobilized and confiscated emergency vehicles. . This demonstrates the existence of superior -subordinate relationship. they “shall be presumed not to be so used”. Facts.16 It was reported 5 persons died in the vehicles and some died while arrested and detained at
12 13 14 15 16
Facts. hindering the access to medical attention of the persons in need. 2. . Military manuals of Germany.3 The superior failed to take the necessary and reasonable measures to prevent such acts or to punish the principal perpetrators.13 II.2 The superior knew or had reason to know that the subordinate was about to commit such acts. South Africa and Switzerland. nothing was done to fulfill his commitment to “ensure that persons detained would receive a fair treatment” or to prevent the commission of crimes. Medical transports “must not be attacked or their passage arbitrarily obstructed”14. JONES COMMITTED THE WAR CRIME OF INTENTIONALLY DIRECTING ATTACKS AGAINST MEDICAL TRANSPORT AND PERSONNEL USING THE DISTINCTIVE EMBLEMS OF THE GENEVA CONVENTIONS IN CONFORMITY WITH INTERNATIONAL LAW 1. since in Jones’ official statement he excused the civilian casualties to their connection with DNA.15 Under the central command.12 2. He also failed to carry out his obligation “to punish the perpetrator after having learned that the offence was committed”.1 KAF attacked medical transports. 1. Jones did know the cruel treatment and torture prevalent among the detainees.Jones’ power of control. Even though there was suspect that medical transports were for military use. which Jones also failed to do. “given the multiple threats to national security”. Article 52(3). The report published by Human Right Watch gave rise to an obligation to submit the matter to the competent authorities for investigation and prosecution. Based on his knowledge of such commission. KAF committed the crime of attacking against medical transport. ICTYSt. AP I.
Jones should bear individual crime responsibility of inducing the commission of such a crime. which in result serves the ultimate goal of the conflict.21 and his intent to induce this crime was manifested since he welcomed the assistance of security forces
Ibid. The new instruction of the central command ordered searching all medical vehicles thoroughly and specified identity checks of all persons in them 17 . Under this instruction. associating with a NIAC. influence an act or course of conduct. According to the “consequence-based approach”.2.19 As stated in I. 21 Prosecutor v. 9th. 2. .1. KAF controlled Corti by heavy fire. 19 Blacks Law Dictionary. Kunarac. Krstic (Judgement) (2001 Trial Chamber) IT-98-33-T . Akayesu (Judgement) (1998 Trial Chamber) ICTR-96-4-T..4 The 4th element of this crime is also fulfilled. Jones was in charge of KAF with “the full authority over West Drakonia by military means if necessary”. as well as its knowledge of the sporadic violence such as the firing from the ambulance. lead by persuasion or reasoning”. . 20 Facts. edn. Prosecutor v. cause. intending them as the object of the attack. 1. 1. KAF members especially stopped and searched the medical transports using distinctive emblems. It proves that KAF was aware of the connection between its action with NIAC. “Inducing” means “to affect."18 KAF searched medical transports under instruction as their “official duty”.
He was “in a
position of authority…to convince another to commit an offence”. . will obviously help Katoland get a better control over the Drak.3 The conduct took place in the context of and was associated with NIAC.2 This attack was intended under the instruction. Then KAF closed the town and implemented the later instruction to search ammunition and prevent military action of DNA.
.  (‘Akayesu’). 2009. this arbitrary inspection constitutes “attack”. Kunarac Appeals Chamber for ICTY emphasized that the nexus of the commitment with NIAC required the act “to serve the ultimate goal of a military campaign.the prison facility. and…committed as part of or in the context of the perpetrator's official duties. 1. And the prevention of transporting armed men and ammunition.
. the airfield used partly for military purpose and the odds ratio in Mesto. 2011.28 It can be anticipated that the cyber attack would influence the military base stationed 8. 25 Facts. . Military advantage must be substantial and relatively close27 in weakening the enemy armed forces after considering the military operations strategically as a whole.25 so the attack did exist.under the Ministry of Internal Affairs. 28 International Legal Materials Reports. . or damage. which was clearly excessive in relation to the concrete and direct overall military advantage anticipated. . 24 ICRC.1.
. . cyber operations “that result in physical damage to persons. As ICRC notes. War crime of excessive incidental death.26 1. The time of the cyber attack after the offensive on Mesto provides the evidence that NCC enabled it.2. 27 ICRC Commentary. “Attacks” requires “acts of violence”23.M. .29 “Incidental” is the collateral outcome to civilians or civilian objects in attacking military objectives. or damage to objects that goes beyond the computer program or data attacked could be qualified as ‘acts of violence’ ”in the sense of IHL. 31st International Conference of the Red Cross and Red Crescent.000 troops. Report 31IC/11/5. .2 The cyber attack caused incidental loss of life or damage to civilian objects.24 Cyber-attacks on the Bargo power station resulted in hundreds of deaths and extensive impact of supply. . 26 Ibid. and with KESA’s assistance since it was charged to seek means of retaliation of the earlier cyber attack and later built close ties with organized crime syndicates specializing on electronic fraud. injury. KESA committed the war crime of excessive incidental death.22 III.612(1992). .L.
Facts. or damage 1. AP I. 1. IHL and the Challenges of Contemporary Armed Conflicts.1 NCC launched an attack. Article 49(1). injury. The cyber attack severely affected the electricity and water supply. 31 I.  29 Facts.
Article 54. Article 25(3)(d). KESA was conscious of the importance of Bargo Power Station to East and West Drakonia and military damage caused by its shut-down. cause excessive damages.31 And the disruption lasted for over 6 months with nearly 500 civilian deaths. . . 32 Such expansive and severe results are clearly avoidable and beyond military necessity. An armed conflict is international if it takes place between two or more States. Prosecutor v. . . .objects indispensable to the survival30 of more than 150 thousand inhabitants. Prosecutor v. ICCSt. making the attack disproportionate. . Furundzija (Judgement) (1998 Trial Chamber) IT-95-17/1-T. Facts. . Facts. .35 Contribution shall be intentional and shall either be made with the aim of furthering the criminal activity or criminal purpose of the group…or be made in the knowledge of the intention of the group to commit the crime.36 NCC and KESA were under the charge of Jones. so KESA knew the circumstances. . 1. Given the location of power station. A person contributing either physical or in the form of moral support intentionally to the commission of a crime by a group of persons acting with a common purpose. 1. the harsh climate and the fact that the station provides power for more than 150 000 households. Ibid.34 With the attack launched by KESA to power station to FRB.
. Ibid. shall be criminally responsible for punishment.3 NCC knew that the attack would cause excessive damages.37 Jones’s intent to launch the cyber-attack is manifested when he proposed to put Western Drakonia under full military authority with his personal supervision and unequivocally welcomed the
30 31 32 33 34 35 36 37
it can be inferred that NCC knew the attack would
AP I.4 The 4th and 5th elements are also satisfied here. 2. Tadic (Judgement) (1999 Appeals Chamber) IT-94-1-A. there came the International Armed Conflict (IAC) between Katoland and FRB. . Jones bears individual crime responsibility of contributing to this crime.
. . Prosecutor v. Musema (Judgement) (2000 Trial Chamber) ICTR-96-13-T. Akayesu. .38 So Jones should bear the contributing responsibility.39
Ibid.assistance of KESA. “even where the principal perpetrator of the crime had not been identified”.
RESPECTFULLY SUBMITTED.PRAYER The Prosecution submits that it has been proved beyond a reasonable doubt that Calley Jones bears criminal responsibility for three crimes under the Rome Statute. Counsel for the Prosecution
. The Prosecution respectfully requests this Honourable Court to adjudge and declare that Calley Jones is guilty on all charges.